June 29, 2012

"There has been tons of speculation in the last day that Chief Justice Roberts changed his vote at some late stage in the Affordable Care Act case," writes Orin Kerr, linking to his Volokh co-blogger David Bernstein's 2posts on the tantalizing meme. Kerr looks at the evidence and speculates about how the complexity of the writing project could have unfolded without Roberts ever switching sides. He was the 5th vote in 2 majorities, one with the liberal 4 and one with the conservative 4:

Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself....
To write the opinion, Roberts needs to cover a lot of ground — anti-injunction act, tax power, medicaid expansion, etc. Roberts also writes on the Commerce Clause issue, even though it’s not needed to reach the result. Why include that section? Perhaps Roberts thinks that his middle-ground opinion that includes a section agreeing with the mandate challengers on the Commerce Clause might pick up Kennedy’s vote. Or maybe Roberts just wants to weigh in on the most high-profile legal issue of the year, which he happens to care a lot about....

After Chief Roberts circulates his majority opinion, the conservative dissenters decide to write a joint opinion in response. Why a joint opinion? It took Roberts a while to circulate his proposed majority opinion, so the time pressure is particularly intense on the dissenters....

At the same time the conservative dissenters are writing their response to Roberts from the right, Justice Ginsburg does the same from the left...

Read all the speculation. It's interesting, and as Kerr says, eventually we'll probably get the inside story. What I want to talk about is whether there's something wrong with switching. Let's assume the Chief Justice originally voted along with Justices Scalia, Kennedy, Thomas, and Alito, that he was writing a majority opinion, agreeing with them on all the issues that ended up in their joint opinion, and that he decided to go the other way on the taxing power issue.

You might want to know why he switched. He might have switched because, in the process of writing — putting together the constitutional text and theory and all the details of precedent and and the complicated mechanisms of the 900-page statute — he saw that his original intuition about how all the elaborate moving parts would fit together was mistaken. The process of writing the opinion tests many assumptions, and a good, decent, humble judge looks at what he's doing and admits: This won't write.

So, in this case, we might picture Roberts initially determining that he would reject the taxing power argument because Congress portrayed the individual mandate as a requirement, enforced by what it called a "penalty," but along the way, he saw that the label should not be determinative. His opinion emphasizes the case, Drexel Furniture, in which the Court found something Congress had called a tax to be, in reality, a penalty and thus not within the taxing power. Turning that around, he saw that Congress calling something a penalty didn't make it not a tax.

Now, I've criticized Roberts for not talking about the democratic theory of the taxing power. It's one thing to limit Congress's power where it's put a false label on a severe and burdensome law, and it's quite another to find power where Congress avoided using the word that would have made it obvious that there was power. In terms of democratic theory, the judicial role is different. The Court in Drexel thwarted Congress's use of a phony label to make a big power grab. Roberts was allowing a power grab to be made by a Congress that was deceiving the people about what it was really doing. If Congress had admitted forthrightly that the so-called penalty was in fact a tax, people might have reacted differently and made it harder for Congress to assemble the votes needed to pass the law. The mislabeling may have weakened the political pressure against Congress and facilitated its exercise of power.

If the Court is going to defer to the legislative process, it ought to care about dysfunctions in the process, so mislabeling the individual mandate ought to activate the Court, not inspire restraint. I wish Roberts had talked about that. But perhaps he did think about it. Perhaps he thought: Congress is always dealing in euphemisms, conning the public one way or the other. What's truly dysfunctional is a Court that coddles the people, purporting to save them from a Congress that is always going to try to trick them into thinking the legislation is quite nice for everybody. People need to stay alert and pay attention. Be skeptical of labels. Did somebody say nobody considers this a tax increase? And you believed it? You are not sophisticated enough to live in a democracy! Sharpen up! I'm not going to encourage your laxity.

I don't know what mental processes Roberts might have gone through in this vote-switch scenario, but I think you should agree with me that if it were something like what I've written, that there is nothing at all wrong with switching his vote. Even if you don't like his taxing power decision, you shouldn't see anything worse about reaching it with a switch than without a switch, if it was a case of writing a duly judicial opinion and discovering that the right answer was different from what he initially had expected. In fact, it is praiseworthy.

But what if he looked outward, after the oral argument, and heard what the President of the United States and numerous commentators were saying, inveighing against an anticipated decision striking down the law? What if he was vulnerable to the strong assertions that the Court will have sacrificed its legitimacy and become an arm of the Republican Party? What if he thought about the political effect of the drastic opinion he was writing and got cold feet? Judging is an insulated world. The judges are old men and women who stay inside, reading and writing, talking to each other, interacting with people who are extremely deferential and respectful toward them. Why are they reliable interpreters of the law that will affect all the ordinary people out in the real world? What do they know?

A Supreme Court Justice could — for example — spend his off months in the summer driving around the country, parking his RV at Wal-Mart, camping around people who don't realize who he is. But he might also simply expand his reading. You're working on that opinion on a computer, connected to the internet, where everyone is talking about what you are doing. Do you forbid yourself to peek, because it's not properly judicial? Or do you break through that inhibition and take that dose of reality? Is that wrong? If you read those things, you can pre-experience the effect the opinion will have on the people. If you vividly inhabit that experience and come to the realization that the direction you've been going is wrong, and then you switch sides, is that wrong?

Perhaps it's quite right. I criticized Roberts for not talking about the democratic theory of what he did with the taxing power issue. But it might be that he looked very deeply into it and that part of that deep look was a contemplation of how the Court's opinion would be understood, perceived, and used within the political process. He might have thought that the people who expected the Court to save them from the Congress that had tricked them — saying this is not a tax — had gone soft, unfit for democracy. To give them what they wanted would further slacken them. But if those who want the Court to let Congress get away with this trickery win, we'd better watch out. The message is pro-democracy: vigilance.

I suspect that John Roberts decided that he did not want to go down in the history books as condemning millions of Americans to no heath care and our system to another decade of worsening chaos all in the name of some out of the mainstream right wing legal philosophy that Scalia, Thomas and other Federalist Society types are trying to graph on our society.

He's just another David Souter. He decided he didn't want to be shut out of the DC cocktail circuit and he knuckled under. Why even bother to elect Republican presidents if every other appointee defects like this? All the arguments about Roberts' cleverness or "long game" are just whistling past the graveyard. The Democratic appointees *never* break ranks and they *don't* care about whatever precedents Roberts may have thinks he's set. Socialism is here, the Republic is dead.

To write the opinion, Roberts needs to cover a lot of ground — anti-injunction act, tax power, medicaid expansion, etc. Roberts also writes on the Commerce Clause issue, even though it’s not needed to reach the result.

My question: How much of Robert's "writing" on behalf of the 5-4 "conservative majority" will be relegated to dicta and be of little precedential value?

the "Dread Pirate Roberts" may be the most brilliant politician currently on the national stage. In his decision he...1. preserved the legitimacy of the Supreme Court to all sides as the ultimate arbiter and as able to serve as a long-term bulwark for our freedoms.2. increased the chance that the next president who will nominate Justices will be conservative --made Obamacare a key issue in the campaign, labeled it a tax making it a necklace of kryptonite.3. limited future attempts to expand government power via the commerce clause4. sated the Left thereby enervating Obama supporters while invigorating the GOP5. in the medicaid portion he increased the ability of states to resist expansions of federal power.6. and he did all this knowing that the people whose support he would most wish would pillory him.

Great politicians managing big issues are often initially misunderstood by all sides.

* When I was a law clerk, I recall a few times that I started writing an opinion with the expectation that it would go a certain way, then found that I couldn't really make it work - I encountered a case or rule that I couldn't persuasively differentiate my case from, or similar. So, I switched, and my judge always approved. I wonder if that's what happened here - though I don't see why Roberts couldn't, for example, differentiate this case from Drexel Furniture the way that Althouse just did, though.

* I see nothing inherently wrong with switching (other than the fact that I just don't like the result); however, if the switch was indeed at the last minute, I wonder if he really had time to cover everything that he should have. Again, as Althouse pointed out yesterday, he overlooked the issue of the case not being a tax for the anti-injunction issue, and never explained that inconsistency.

* Althouse should be chief justice, apparently. Though that would really mean that she couldn't blog anymore, which would suck.

* I just can't imagine anyone as intelligent and elevated as a Supreme Court Justice being swayed by this "court legitimacy" rhetoric. Particularly given the opinion polls that showed the opposite. That strikes me as an odd theory.

* I would love to get inside Roberts' head for a bit. I don't really get him at all right now.

John Podhoretz has a poor opinion of Roberts reasoning over at commentary Contentions. I've been reading a lot of different opinions and I'd like to believe the ones that put a positive spin on the ruling but bottom line we have to get Romney and the Republicans elected in November so ObamaCare can be overturn.

I guess time will tell if Roberts was wise or just wilted under liberal pressure.

I suspect that John Roberts decided that he did not want to go down in the history books as condemning millions of Americans to no heath care and our system to another decade of worsening chaos all in the name of some out of the mainstream right wing legal philosophy that Scalia, Thomas and other Federalist Society types are trying to graph on our society.

Yes, making sure all Americans have NHS-type healthcare (including being allowed to die when the "caregivers" and bean counters don't think they should be saved) is uppermost in Roberts' mind.

Left Bank said: The idea that the Supreme Court function as a sort of consumer protection board to protect the public against legislative misrepresentations goes against conservative principles.

I strongly disagree. Conservative principles stress government accountability and limits on power. If government can lie to the people with no accountability and obsucate the results with a 2000 page bill that is impossible for a lay person to understand, and not be accountable for that later, then it desparately needs a check, and SCOTUS is the only one that can effectively give it one.

I think the Professor is right here. If Roberts came to this conclusion honestly there's nothing wrong with switching. Obviously switching is more palatable when you move from a worse decision to a better rather than what he did, but the switching isn't the problem. But if he did it to protect the Court's reputation it's a huge miscarriage of justice.

The wrong commentary I see about the internet is that Roberts somehow set or reinforced a constitutional line. What he did was build a bridge over the line.

According to Roberts anything is constitutional as long as you provide an out, even if the out is discouraged by a "tax" whose sole is to negate the out. The left stressed how low this tax is in order to get it passed. But in 20 years, maybe in 5, the tax will be nearly the same as the premium.

This is how the left is. A compromise doesn't lead to agreement, it leads to new demands. Progressive means always forward. Always more. Forever. Eternally.

Ann there is no defense for what Roberts did. He aided and abetted a fraud. He should have written that the bill was constitutional if it was labeled a tax and punted back to congress for a re-wright. Congress should clearly specify what it meant when it passes a bill and bot leave it to the courts what congress intended. That certainly would force congress to write cleaner and more coherent legislation as well as more honest legislation.

Romney if elected should push for a repeal. If the democrats want to re-introduce the bill they should do so as a tax bill. This why a constitutional amendment to clarify what is a tax, fine and penalty is needed for and all spending bills must state what the funding is and that courts can't divine something other than what was in the bill with respects to the type of funding. So no more secret, stealth taxes or tax hikes. Let congress muster up the courage to vote on new or additional taxes. That is what their job is and the courts should act as cutouts for legislators.

You know Obama could go a long way in getting support by promising he never intends to bring NHS-style healthcare to American. We Americans love our private-run hospitals. We do not want the horror show that is the NHS.

"But in 20 years, maybe in 5, the tax will be nearly the same as the premium."

And it has to be to have any chance of working, economically. And the irony there is that once the tax meets or exceeds the premium cost, then it is back to being a coercive "penalty" and no longer is a tax. Voila -- unconstitutional!

I'm still in shock with the tweets that the tweet scoopers aggregated and showed us. The straight up racism within the Democratic party is disheartening. That is the club I would pick if I could be in clubs and now I look at my friends who are dyed-in-the-wool Democrats and think, 'you belong to that club?'

"Chip S. said... Justice Ginsburg had realized how foolish her argument was and made it a 6-3 decision to overturn the ACA.

How come it never seems to go that way?"

Because the far left accepts their role as bench policy enforcers. If logic or honesty lead them to the wrong policy, they'd pronounce logic and honesty tools of dead white males and rule from emotion instead.

@Revenant -- What if coherence isn't possible? Althouse's comments on the connection of this case to Raich is instructive. What if the best a justice can do is follow a line of reasoning -- through multiple cases -- to a defensible, if flawed conclusion.

Barry S said: That's a cop-out. It's not conservative to look to the courts to save you from bad legislation. Roberts says save yourselves through the ballot box.

I still disagree, in this case. It's only possible to save ourselves through the ballot box if we know what we're getting, and if government lies, misleads, and covers up, we can't know what we're getting. That's what happened here.

(I would agree that, in absence of the misrepresentation issue, this is not the court's area.)

I actually kind of like Roberts opinion. as far as the objections you raise, I imagine it's like playing a piano piece. Not all the keys are hit with the same strength; you have to take the work, his opinion in this case, in some interpretation. It's not obscure that a tax was going to b involved; '14,00 IRS agents are going to be hired' if I recall correctly. TNC at the Atlantic has a nice link to a post on Roberts and his view of the collegial model of a chief Justice. Reflecting on Fallows' 'coup' remark, I think Fallows betrayed the liberals plan/ insight which was to destroy the insurance companies with the guaranteed issue provision and lead to an NHS but that will take time and thus is left to democratic will and future discretion.

"If, in the course of writing her concurring opinion, Justice Ginsburg had realized how foolish her argument was and made it a 6-3 decision to overturn the ACA.

How come it never seems to go that way?"

-- Because Republicans don't push court nominations as hard as Democrats do. So, Republicans back off and appoint more moderates, with a few committed ideologically sound people sneaking through now and again. Meanwhile, Democrats can appoint pretty much anyone and Republicans will say things like elections have consequences and a president has a right to his appointments.

I for one can't get all that worked up over this ruling. We were eventually going to get a rationed health care system simply because our current system is unsustainable. Roberts simply hit the accelerator.

"As I noted yesterday, I think Roberts decided he did not want his legacy to be tied to the party line politics of the recent 5/4 decisions and decided to embody the restraint he promised."

-- By joining a different party line, 5/4 decision!

Isn't it funny that 5/4 decisions in the left's favor are never partisan, party line decisions and votes that have both Republican and Democrats, like finding Holder in contempt, are never described as bi-partisan? It's a laugh riot.

I'm thinking that there is a possibility that it was someone else who flipped, either Kagan or Sotomayor.

I cannot believe that all five truly believe the absurdity that is the Roberts opinion on the Tax Clause. I believe it quite possible that either Kagan or Sotomayor did NOT initially think that the mandate was simply a tax and that they were initially going to go with the Scalia group on that issue.

The four libs wanted to uphold the law under the Commerce Clause. But once they saw that Roberts was going to find it violative of the Commerce Clause, thus meaning that the whole thing went down, then they flipped on the Tax issue. What the hell do they care if it is upheld on this or that?

This much is clear -- the Scalia opinion does not read like a dissent, it does not engage in a point-by-point rebuttal of the Roberts opinion (but Ginsburg's opinion does go point-by-point, repeatedly referring to the CJ's opinion).

As it is, the Court did, in fact, lose all legitimacy and credibility with this Humpty-Dumpty ruling that, when it comes to statutory interpretation, words mean nothing, the actual text means nothing, the subjective legislative intent means nothing. Rather, even though the statute says X, the court will rule that is actually says Y. Under the Roberts regime, nothing is safe, there is no rule of law, there is only the arbitrary whims of unelected despots in robes.

A previous draft of the Obamacare bill specifically labeled the mandate as a "tax". It was taken out when it occured to the bill's supporters that it might not pass if the mandate is said to be a tax. This left congressional democrats, and the President himself, to forcefully claim that the mandate was a penalty and not a tax at all. .

So it is pretty clear that congress did not intend the mandate to be a tax.

But Given CJ Robert's opinion, it makes no difference what congress intended, the courts will determine what is a tax and what is not a tax-but rather a penalty.

So now, there is not only no limiting principle on what congress can require under its taxing power; there is also no limiting principle on what can be called a tax.

It is difficult to argue that this state of affairs preserves the liberty that is necessary for a democracy to function.

Also Chip, R.V.'s comment explains why Republican nominees waver more than Democrats' nominees. The D nominees know that they will never be called out on their bullshit.

Remember, during the entire argument, Alito, Roberts and Kennedy all were seen as potential swing votes. Even Scalia, some people said, could be made to come over to the left's side. There was never any honest thought that any of the four liberal justices could find in the opposite direction. No one ever thought they'd have the intellectual curiosity to think through the problem and reach a different conclusion.

And this was considered a good thing for them. So, there you have it. Moderation in pursuit of conservative values is the greatest virtue; moderation in pursuit of liberal values is the greatest sin.

Until we break that narrative and kill it dead, which means calling people like R.V. out on their illogical, absurd statements, it will just be used to bludgeon whatever person they feel like bludgeoning next.

The only reason no one thought Thomas would go the other way is because if they said that he might, they'd lose their ability to use racial slurs against him.

I saw the president on the tv. Thank God the thing was muted. No wait, God had nothing to do with that miracle, that was me, sorry God for dragging you into that, apologies. Anyway I'm glad it was muted because for a second there I'm certain I saw a mechanical monkey banging cymbals, like a flash that was, wwwhit wwwhit so I turned on the sound and I was all like how does this thing work again? oh there it is clang clang clang clang, sure enough, mute.

Indeed although I must give credit its due to a political party that has used said tactic to create a dependent constituency while simultaneously and successfully convincing them to believe their opponents are the ones keeping them down.

Note that NO ONE joined with Roberts in the Commerce Clause sections of his opinion. Parts III–A, III–B, and III–D of the Roberts opinion have one vote -- his own. Scalia, et al. did NOT join that opinion. Rather, the opinion garnering a plurality on the Commerce Clause issue is the four-vote Scalia opinion.

One aspect of democratic theory is that elected representatives do the big societal issues, and courts deal with crimes and torts (individual issues).

Is Obamacare an individual issue or is it a destruction of our whole society? It's the latter! But those sorts of big issues need to be resolved by our people, by voters. Not by 5 people!

Even if the Constitution requires a Declaration of War, for instance, it's not really the judiciary's role to litigate Vietnam. That's bizarre. That's inappropriate. The American people will resolve the fight over Vietnam. Not the Warren Court.

Not every Constitutional violation has a remedy in the unelected branch!

"He might have thought that the people who expected the Court to save them from the Congress that had tricked them — saying this is not a tax — had gone soft, unfit for democracy. To give them what they wanted would further slacken them. But if those who want the Court to let Congress get away with this trickery win, we'd better watch out. The message is pro-democracy: vigilance."

I think this is over-analysis (keeping in mind that the Professor here pitched this as a hypothetical, a "could be" instead of a "this is what happened"). But that said, even if Roberts was not intending what this hypothetical said he would have been, the practical effect on the population is the same because the proper reaction to the result should be the same: Vigilance. I don't think Roberts actually intended to wake the population up to their lethargy (and again, I have to emphasize that the Professor here isn't saying that was the case either), but he did make clear that the court wasn't in the business of saving the population from themselves. It's up to the legislature to craft laws wisely and well, and it's up to the population to wisely elect their representatives. Part and parcel withthat is that it's also incumbent upon the population to not depend on the court to bail everyone out of bad decisionmaking. That's an electorate's function.

So, no, I don't believe the hypothetical is what really happened. But I also believe that it's irrelevant. The message is the same: Own your legislation. It is indeed the population's legislation because it was passed by those we voted in (even if most of us here voted for the opponents. We're still part of the population, and we still own this tar baby because we're all in it together, whether or not we want to be). So the fix must be implemented by us.

And THAT is what Democracy really looks like. Not protests or spoiled behavior. But rationality in response to events, and a will to pick up and do what's necessary to fix things. If nothing else, Roberts decision should awaken that characteristic in all of us.

There is a lot wrong with sandbagging, with bait-and-switch, with last-minute, disingenuous flips that do not allow for proper vetting. Again, it is strange that in this case we do not have the usual Scalia sharply pointing out how laughable the irrational nonreasoning of the opinion is. If we did have that, Roberts might have seen how flimsy and frivolous (worthy of Rule 11 sanctions) his argument is.

From here on out, all statutes are a blank slate, a blank check upon which not only administrative bureaucrats but judges will write the law to be whatever they want the law to be, regardless of and even contrary to what the legislative branch enacted.

I still disagree, in this case. It's only possible to save ourselves through the ballot box if we know what we're getting, and if government lies, misleads, and covers up, we can't know what we're getting. That's what happened here.

Usually, the public is misled only when it wants to be, or at most when it allows itself to be. And it this decision, the chief Justice unwraps whatever deceit remained in this abomination, placing the ball squarely in the hands of the voters, where it rightly belongs.

I think the Chief Justice is concerned with not only the constitutional problems confronted by the Court, but the prudential manner in which the court proceeds. The Court ought to have a minimal role in the legislative process, and ought to eliminate laws in rare cases. Here, he walked the line between limiting Congress' power under the commerce clause, and striking down a wide ranging law. In doing so, he lent credence to the emerging (now, fully emerged) view that Congress does not have unlimited power under the Commerce clause.

I am not fully satisfied with his explanation of the limits of congress' ability to tax inactivity (still hoping for a response from Dose - you still there?), but I think the right would do well to heed his statement about the role of the court. A legislative solution is available. The voters can take it or not, and live with the consequences either way.

Does Roberts tortured language mean that every time the Court struck down laws as unconstitutional in the past - 169 times, I believe - the Court was denying The People the consequences of The People's will, as enacted by its representatives in Congress?

It seems as if some key bit of information is missing that will put this puzzles together. The inconsistencies: 1) Roberts is normally a very coherent writer writing an incongruous opinion and basically writing only for himself; 2) rejects stretching the commerce clause while at the same time stretching the definition of a tax (speaking philosophically, taxing inactivity more closely aligns with a penalty); and 3) provides no clear majority rules on congressional power in a seminal case that is all about congressional power.

Simply stunning. We are in the same exact position as before with no clearer understanding of the constitution or the principles used in interpreting it. I think this case will have very little impact on constitutional law going forward.

The commerce clause restriction is not a win for conservatives. It ended up in the larger scheme being irrelevant to the decision. So maybe this signifies the court’s future stance on the issue, but serves as weak precedent as best going forward.

ANN: Will you please more clearly address how this is a tax? Can you give other examples of taxing inactivity and calling it a tax? I read Yung’s piece on Penalties for Inactivity. It focuses on the criminal aspect, and I don’t find that a criminal aspect need be present to be a dispositive penalty. At best we have a quasi-tax that is half tax and half penalty. Robert’s focuses much effort on the relationship between the government and the people when discussing the commerce clause, and then abandon’s that same line of thinking when he approves of a tax that changes the definition of a tax.

“When I was a law clerk, I recall a few times that I started writing an opinion with the expectation that it would go a certain way, then found that I couldn't really make it work - I encountered a case or rule that I couldn't persuasively differentiate my case from, or similar. So, I switched, and my judge always approved. I wonder if that's what happened here - though I don't see why Roberts couldn't, for example, differentiate this case from Drexel Furniture the way that Althouse just did, though.”

Perhaps what Chief Justice Roberts confronted was the principle that a statute has to be interpreted, if reasonably possible, so as to avoid constitutional infirmity? Certainly you can distinguish Drexel Furniture – or not – and reach a defensible result. But the rules under which Chief Justice Roberts was operating required more than that he arrive at a defensible result – in order to conclude the penalty wasn’t a tax for tax-and-spend power purposes, he had to conclude the penalty-is-a-tax interpretation wasn’t just wrong, but not even “fairly possible.”

Chief Justice Roberts introduced the whole tax discussion, at page 32, with "The question is not whether that [i.e. penalty is a tax] is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below."

And the joint dissent's point of departure, at page 18, is: "In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty."

So I think that was the dispute: was the penalty-is-a-tax interpretation a "fairly possible" one, or did it require rewriting the statute?

So a justice doing what a justice is supposed to do isn’t asking whether “this a tax” is the best interpretation, only whether it is among the universe of reasonable interpretations.

And THAT is what Democracy really looks like. Not protests or spoiled behavior. But rationality in response to events, and a will to pick up and do what's necessary to fix things. If nothing else, Roberts decision should awaken that characteristic in all of us."

He might have thought that the people who expected the Court to save them from the Congress that had tricked them — saying this is not a tax — had gone soft, unfit for democracy.

Due to the need to get a supermajority in the Senate to approve anything of substance, Obamacare isn't going away, even if Romney wins and the Republicans take back the Senate. In effect, Roberts is punishing the 53% who were not vigilant in 2008 by (1) allowing the destruction of the health care system and (2) paving the way for complete government control over our lives. If you control access to care, you control the people.

So whatever his musings may have been, in the end, Roberts is a disappointing failure.

As one of the "stabbed in the back" chorus. Let me clarify, slightly. It's the strong evidence that Roberts changed at the last minute that's thrown me into despondency, not the fact that he didn't rule the way I wanted.

He pretty clearly was going to vote with the dissenters and then knuckled under to all the whinging BS about legitimacy and politicization of the court.

Roberts was allowing a power grab to be made by a Congress that was deceiving the people about what it was really doing.

Obamacare is an attempted power grab under the commerce clause. Liberals keep trying to make the commerce clause a power to regulate anything and anybody. They can and should get smacked down by the right on this.

Obamacare is not a power grab under the tax clause. Scalia did not fight Roberts on Congressional authority to tax. Scalia knows it's broad. He fought Roberts on the statutory interpretation. That's all.

Why did the liberals (most famously Obama) characterize it as "not a tax" to the people and "it's a tax" to the judiciary?

Yes, they want to avoid the unpopularity of taxes. But also there is a big Senate divide between a budget fight and a regulatory fight. A budget fight, Republicans would need 51 votes to overturn Obamacare. A regulatory fight, we would need 60 votes to overturn Obamacare.

The power grab was calling Obamacare a non-tax in order to protect it by Senate filibuster.

This secret tax was not only designed to fool the American people, it was also designed in an anti-democratic way to keep Obamacare from being overturned by the voters. Roberts skewered that by calling it what it clearly is, a tax.

Of course, the Supreme Court could have taken the liberals at their word. "You say it's not a tax, so we say it's not a tax." That's the approach of the Scalia 4. Accept their lies as truth.

There's a certain justice in that. But it's also pretentious and dishonest. Why should we accept their lies?

Is the mandate a crime or a tax?

It's clearly a tax. So Roberts' approach is more honest statement of what the mandate actually is. Once you see it's a tax, the constitutional issues are easy.

Ann is channelling her inner Henry James here -- that's the question a novelist would focus on. As for CJ Roberts, it's completely obvious that he is fully human, completely engaged in what he's doing, plainly aware of the responsibilities of his high office, and extremely able intellectually as a man and technically as a lawyer/judge. Does anyone really doubt that, at various times while this decision was gestating, CJ Roberts didn't think about everything in Ann's catalog, and quite a bit more besides? For fans of Henry James, you can almost imagine the internal dialog that James would have written on all of that.

But whether CJ Roberts switched, and if he did, what his reasons were, are just historical footnotes that could easily be skipped by anyone other than his biographer. His opinion spells out his reasons for ruling why he did. Roberts knows (any good lawyer in the same spot would know) that there are powerful counterarguments, some of which don't have really good answers. Focusing on his intentions, desires, calculations and the like all get at issues of authenticity and alienation -- mauvaise foi as the French novelists of 50 years ago would have phrased it. But it's a telling comment on today's world that this inquiry into the internal workings of Roberts' mind and character is now front-and-center where the operative document (his opinion) is all that matters and there for all to see.

THIS is why I read Ann Althouse. Good writing about an important issue by someone who knows her subject. Thanks AA.

I also -- as a conservative -- appreciate CJ Roberts' restraint and modesty in reaching an opinion that did not VOID what Congress did (much as I loathe the law and how is was passed) but simply stripped away what was plainly at odds with the Constitution, restated the bogus "penalty" as the tax is obviously is and left the rest to politicians to deal with.

“I just want to respond to the frankly bizarre attack, which is the claim this act represents a big tax increase on the middle class,” Patrick said. “First, this is a penalty. It’s about dealing with the freeloaders -- the folks who now get their care without insurance in high-cost emergency room setting. And all the rest of us pay for it today.”

He also pointed out that Oceania has always been at war with Eastasia.

Now that the individual mandate is a tax, congress need only have a majority to change that bit of the law. Doing so would leave the insurer coverage mandates (guarantee issue, community rating) in place but would gut the only mechanism that makes the thing work financially, so they need to be careful what they ask for. Eliminating the individual tax mandate would doom insurers and pave the way for single-payer.

Maybe the leftist D's will introduce the legislation to eliminate the tax but leave everything else in.

That would be ironic if the leftists were pushing for tax elimination and the R's had to dedfend the insurers by voting to keep the tax in place.

I'm not familiar with all of the Senate rules, but I simply do not believe that Democrats in the Senate would not be able to filibuster a bill repealing the entire Obamacare law. Most of it has nothing to do with the tax/penalty distinction.

“I just want to respond to the frankly bizarre attack, which is the claim this act represents a big tax increase on the middle class,” Patrick said. “First, this is a penalty. It’s about dealing with the freeloaders -- the folks who now get their care without insurance in high-cost emergency room setting. And all the rest of us pay for it today.”

Chip: Any thought as to what harrogate would say? He seems to think Obamacare is on behalf of the freeloaders.

And what's interesting is that every single person commenting on this site about how HORRIBLE this is...will take advantage of the benefits, will have friends take advantage of the benefits, and of course, will have all kinds of family members (especially seniors) take advantage of the benefits.

I suggest that anyone who feels this is HORRIBLE...make damn sure they opt out of any future benefits related to the Affordable Healthcare Act.

The law is here to stay. The mandate/tax was a very minor part of it (as Roberts explains, it really doesn't save the insurers, because they don't get the money, and it wouldn't be enough to make up for the lack of premiums anyway). So, yes, the Republicans should get rid of the "tax." So yes, the Republicans should, at a minimum, get rid of the tax if they have the opportunity. The destruction of the private health insurance industry will proceed whether the "tax" is in place or not.

Look, it's no longer possible to cloak the mandate in the Commerce Clause and force compliance through a 'penalty'. It's now and forever more a tax.

So now, without the cloak, the ACA will be dealt with in any repeal vote as a tax - highest on the middle class in history - and anyone who votes against repeal faces their constituency having saddled them with that tax.

If repeal fails because enough of the legislators who vote against repeal read their constituents correctly as accepting that tax and are returned to congress this fall there won't be another attempt to repeal and we have the ACA. And in a Democracy, we should in that case.

If repeal fails because enough of the legislators who vote against repeal read their constituents incorrectly as accepting of that tax and are not returned to congress this fall there will be another attempt to repeal that will pass and ACA is dead. As it then should be.

If repeal passes in the House, the Senators up for re-election this fall face the same choices.

And unless the GOP in the house are utterly forsaken - possible - it will go to a vote with a week or two after the week of the 4th. Before the 12th according to Cantor.

Every single House member and every Senator up for re-election this fall is looking very closely at the polling and more importantly, the polling in his or her district or state.The Commerce Clause nonsense is dispensed with. The matter has been simplified immensely. Will enough of your constituents support the ACA as a tax to justify casting a personal and public vote against repeal, or do you read it as voting to repeal a matter of personal survival.

And if there's no repeal vote this summer, every House and Senate Democrat campaigning this fall will have to answer the question of whether they will support repeal in the next Congress.

I'm curious as to why Roberts automatically became CJ when he replaced Rehnquist. I would have thought SCOTUS would have some procedure in place whereby the CJ would be chosen on the basis of experience or something, and not give the post to the newest guy just because he's replacing the former CJ.

Don't want the Wisconsin system, though, where we're stuck with the longest-serving justice automatically being CJ. Look what that has led to.

Also, if it is a tax, then the Anti-Injunction Act says nobody can challenge it until it is paid.

So, what the hell?

This is where Roberts largely loses me. He really had to be creative when, in the same opinion, the mandate was a tax for taxing power purposes, but was not a tax for Anti-Injunction Act purposes. And the other libs had to eat that shit sandwich as well. Everyone thought the Anti-Injunction Act was the threshold issue on the tax question, which is why all the smart people got fooled on this outcome.

The flow chart said "Tax?" and immediately proceeded to "No jusrisdiction under Anti-Injunction Act." "Not a Tax?" and the flow chart proceeded to all of the other issues. Roberts drew a few more lines on his flow chart and got past the tax question-as-blocked-by the Anti Injunction Act.

Petunia: I'm curious as to why Roberts automatically became CJ when he replaced Rehnquist. I would have thought SCOTUS would have some procedure in place whereby the CJ would be chosen on the basis of experience or something, and not give the post to the newest guy just because he's replacing the former CJ.

It was Bush's call - he could have promoted someone instead, but he decided not to, I assume because he wanted to put his guy in the top spot (for decades to come, given the relative ages of the justices). Also, I think that, had he promoted someone, there would have to have been 2 confirmation circuses - one for the promotion and one for the new guy.

If I recall correctly, Roberts was already W's appointee for a spot that opened up (O'Connor's) and then Rehnquist died. W shifted Roberts into the CJ spot and appointed Meiers, then Alito for the open O'Connor spot.

How much of Robert's "writing" on behalf of the 5-4 "conservative majority" will be relegated to dicta and be of little precedential value?

Hard to say. The commerce clause part of the opinion joins a whole line of cases, starting with Lopez, that limits the commerce clause.

No liberal has signed onto this yet. That's a big deal. If liberals continue to fight for this insanely overbroad interpretation of the commerce clause, sooner or later they will have 5 votes and might overturn it.

The spending clause part of the opinion is huge! First time Supreme Court has done that since the New Deal. They struck a big blow for federalism. And it's 7-2! Liberals on board! That's a watershed part of the opinion.

Whether the mandate is a tax or a fine is statutory interpretation. A future court might cite this case as an analogy, but in terms of Con Law this part of the opinin had no force at all. Only Roberts reached the tax clause and he didn't do anything radical with it. Might have some relevance if there is a tax/fine dispute in the future. But it's easy to distinguish.

There are two points being made about Robert's ruling benefitting the right, and both are wrong. I already outlined how the ruling does not re-establish the commerce clause, it establishes a path of avoidance.

Chip's quote above destroys the other: that the ruling forces Democrats to deal with the political consequence of enacting a tax. Democrats aren't going to call this or anything else they enact a tax, and the media is going to support them. The right will of course refer to it as a tax, but we did that during the Obamacare enactment period and that made no difference.

The Supreme court ruling doesn't force Democrats to call the tax a tax. The dispute over them not doing so will reveal Democrats' and the left's mendaciousness to anyone paying attantion. But so what? That's been obvious for decades. It won't change anything.

BarrySanders20 said...“Also, if it is a tax, then the Anti-Injunction Act says nobody can challenge it until it is paid.

So, what the hell?

This is where Roberts largely loses me. He really had to be creative when, in the same opinion, the mandate was a tax for taxing power purposes, but was not a tax for Anti-Injunction Act purposes. And the other libs had to eat that shit sandwich as well. Everyone thought the Anti-Injunction Act was the threshold issue on the tax question, which is why all the smart people got fooled on this outcome.

The flow chart said "Tax?" and immediately proceeded to "No jusrisdiction under Anti-Injunction Act." "Not a Tax?" and the flow chart proceeded to all of the other issues. Roberts drew a few more lines on his flow chart and got past the tax question-as-blocked-by the Anti Injunction Act.”

My oversimplified understanding of this is that it’s a function of the difference between a statute and the constitution. The Anti-Injunction Act and the ACA are both statutes, and Congress has a lot more leeway in deciding how its own statutes interact with each other. So Congressional labels carry a lot more weight if you’re deciding whether one statute trumps another.

The tax-and-spend power is in the constitution, however, and there Congress’ labels don’t carry as much weight. Chief Justice Roberts was applying the rule that you have to interpret the statute if “fairly possible” so as to preserve its constitutionality. He determined the function of the penalty made it sufficiently tax-like so that it was “fairly possible” to consider it a tax for purposes of that question.

I don’t think in his shoes I would have reached the same decision. But, while it took some verbal gymnastics, he did have something to hang his hat on.

To bring down costs and ensure access to great health care, we need a strong and competitive private health care industry. The democrats have been successfully vilifying our private health care industry for decades. Stupid people believe the lies. As government takes over, health care will only get more expensive, and the quality and access will diminish. Soon, we will have single payer, 100% government controlled health care, all funded by tax payers. I promise you, it will suck.

I don't really care to speculate how Roberts came to his decision. Especially as the speculation becomes more labyrinthine, the likelihood of it being correct becomes exponentially more unlikely.

We'll have to wait to hear from some of the people who were involved.

One bit of speculation that is pure hogwash is Roesch-Voltaire's assertion that Roberts did this mainly with his legacy for fairness in mind. Way to shoehorn an outcome to fit your very limited Democrat narrative. God. As effete progs are wont to say, that's specious on stilts.

People have thrown the term arrogate around; more like abrogate to me. Roberts had a chance to show leadership by actually checking an overreaching branch of government, as is his job, but wound up hiding behind the technicality of 'not my job'.

Your naivete is touching. Who ya gonna call when Harry Reid declares that this is obviously not a tax, because Congress didn't enact it as a tax. SCOTUS can't help you out of this one

And your wailing douchebaggery is touching. You have talking points. Opponents have a supreme court opinion. There's also an election and you presume harry will still be calling the shots. Why do you assume that?

I'm not familiar with all of the Senate rules, but I simply do not believe that Democrats in the Senate would not be able to filibuster a bill repealing the entire Obamacare law. Most of it has nothing to do with the tax/penalty distinction

Those are the rules, very clearly, but t-man has already made up his mind to give up. The law is built around the tax; it isn't a series of bills, so it will be subject to the reconciliation rule.

Love said...

The WHINEFEST continues.

As usual.

And what's interesting is that every single person commenting on this site about how HORRIBLE this is...

And all from the Lefties who are so outraged that the Conservatives haven't given up the fight.

"Nothing is over until we say it's over", is only supposed to be for the Lefties, right?

PS As to HORRIBLE, Love doesn't seem to understand that this will add $2.7 tril to the already crushing debt in its first 10 years of operation.

I would have thought SCOTUS would have some procedure in place whereby the CJ would be chosen on the basis of experience or something, and not give the post to the newest guy just because he's replacing the former CJ.

One problem with that is the CJ has to be confirmed.

Let's say that W wanted Clarence Thomas to be Chief.

O'Connor retires.Rehnquist retires.

He would need to get three confirmations.

Thomas for the C.J. seatRoberts for Thomas' old seat.Alito for O'Connor's seat.

If you nominate somebody for the C.J., then you only have two confirmation battles. So politically it's easier to bring in the new guy.

Reagan elevated Rehnquist. There was a fight but they didn't have the votes to stop him. It really depends on how strong/weak the President is.

The Supreme court ruling doesn't force Democrats to call the tax a tax.

No, you can always lie. But the Supreme Court said it was a tax, and we all heard it. This is the same Supreme Court who is getting props in the New York Times and Washington Post for their fair and just opinion.

Not only can we now cite the Supreme Court for the legal ruling that it's a massive tax, but we also have the Obama Administration saying in Court that it's a tax.

He says one thing in Court and another thing to the voters?

Liar!

And on top of this we have the argument that if it's not a tax, that Obama is defining everybody who can't afford health care as a criminal and making them pay fines. Let Obama run on that if he wants to.

There's a reason Obama doesn't want to talk about Obamacare. And the more it's in the news, the better it is for Republicans.

We have $100T in unfunded Big Entitlement liabilities, yet if I was at retirement age right now, I would not send back my SS check. That doesn't mean I can't work to come up with a better plan than a fraud invested open ended entitlement.

Your conjectures about what might have motivated Roberts to switch are well-taken.

But IMO the nub of the issue, and the rub of it, remains the following, as you so well put it:

"It's one thing to limit Congress's power where it's put a false label on a severe and burdensome law, and it's quite another to find power where Congress avoided using the word that would have made it obvious that there was power. In terms of democratic theory, the judicial role is different. The Court in Drexel thwarted Congress's use of a phony label to make a big power grab. Roberts was allowing a power grab to be made by a Congress that was deceiving the people about what it was really doing. If Congress had admitted forthrightly that the so-called penalty was in fact a tax, people might have reacted differently and made it harder for Congress to assemble the votes needed to pass the law. The mislabeling may have weakened the political pressure against Congress and facilitated its exercise of power."

The ruling doesn't change the Democrats prospects. People were already against Obamacare, that issue isn't effected. But the belief that the SC calling it a tax increases opposition to Obamacare is wrong.

Some R's are equating the ACA ruling with 9/11. I lean more to the Holocaust. But I suppose reasonable people can differ.

LOL.

I'm equating Fast and Furious as worse than Watergate. How about you? A little B&E vs hundreds of murdered people. What say you, Garage? First AG ever to be in Contempt of Congress. Can impeachment be far behind?

"On “The Matt Murphy Show” on 100 WAPI in Birmingham, Ala. on Friday, Alabama Sen. Jeff Sessions, the ranking Republican on the Senate Budget Committee, said that repealing Obamacare in the wake of yesterday’s Supreme Court decision will be easier now that it has been declared constitutional under Congress’ powers of taxation.

Given that the decision has converted the law into a budget issue, Session said he now subscribes to the belief that the Senate will be able to repeal Obamacare with a simple 51 votes, instead of the 60 normally required to overcome a filibuster."

In a free society, in a self-governing society, we should not have to depend upon the next election to obtain our freedom, we should not have to look to Romney or any other Republicans and hope and pray that they will do what they should do in return for us giving them power.

To hell with Roberts, to hell with the courts, to hell with Romney and the Republicans and Congress and Obama and the Dems. OUR LIVES SHOULD NOT HAVE TO RISE AND FALL DEPENDING UPON WHAT OUR "EXAULTED RULERS" DO OR SAY.

Your post leads me to regard Roberts's manner of being Chief Justice as very similar to that of John Marshall.

Particularly Marbury v. Madison...

Back then, there was a lot of uncertainty over exactly what the role of the SCOTUS would be... and one group wanted Marshall et al to rule one way; another group wanted the ruling to go the other way; but Marshall likely gave deep, primary consideration to the role of the Supreme Court and went a direction that nobody was really expecting.

Point being that the really sharp Chief Justices, when it comes down to the trailblazing decisions, will put institutional and structural concerns ahead of the merits... not because they read blogs or try to cater to public opinion, but because they reject the road that would lead to their branch of government becoming irrelevant.

No one cares if it's a tax or a commerce clause mandated purchase enforced by a penalty collected by the IRS.

People want a fair private health Insurance market.

The Obama-Pelosi trick was to destroy all private health insurance by what amounts to a massive bribing of insiders and a few easy to buy cheap Senators folks for a few years.

We get Socialism and a financial crisis demanding a Tyrant...well its OK since the Tyrant just bribed us into doing it in Congress. (I blame Bush!)

The voters want every free thing Socialism promises, but until today they knew it was a trick. After Fairy Dust Roberts surrendered, they now believe in free benefits paid for by the 1% being taxed more, which is not possible.

But the benefit will simply cost a sucking out of the middle class wealth store, and thus create a serfdom for us and our children that only a Strong Man King from Kenya really appreciates.

Allie...in a way, that is behind the "repeal and replace" movement. Don't just try to repeal it, but come up with a better plan. One that is not an open ended entitlement and one that does not give so much power to DC 'crats.

Ann -- Not about your posts -- they are wonderful. But I am in the habit of copying your long posts into ms word and then transferring to my kindle. In your column quotes are set off with different margins, but when transferred to my kindle they look the same as your own text. Could you add quote marks...

The Supreme court ruling doesn't force Democrats to call the tax a tax.

No, you can always lie. But the Supreme Court said it was a tax, and we all heard it. This is the same Supreme Court who is getting props in the New York Times and Washington Post for their fair and just opinion.

"What if Romney wins the presidency and then decides Obamacare isn't so bad after all, it's comforts him, reminds him of his own creation?"

I don't believe that. I think Romney is more conservative than most people think, remember he was Governor of a very liberal state. The bottom line is that Romney will be better than Obama even if he were to "evolve" after getting elected. Plus, it is in Romney's interest to help repeal Obamacare because he wants fix our failed economy and be a successful president. Obamacare is hurting our economy.

Who determines whether a repeal bill has to treat the ACA mandate as a tax or a regulation?

The other argument making the rounds is to use the same reconciliation process that was used to pass ACA in order to repeal it. There are already howls of outrage about this from the left, which the MSM will amplify.

How likely is it that the Republicans will gain control of the Senate? According to Larry Sabato, AZ, IN, and ND lean Republican, with AZ and IN already being held by Republicans. So suppose ND is a net R gain. ME is a likely loss and NE a likely pickup, so those two net out. The good news for Reps is that of Sabato's 7 tossup states, five are currently held by Dems. The two toss-ups that are held now by Reps are MA and NV. That means the Reps have to hold their two tossup states and win 2 of the others (FL, MO, MT, VA, WI). Or, if they lost one of their two tossups they'd have to win 3 of the 5 Dem tossup seats.

Allie:Wouldn't it behoove everyone if both sides worked together to improve this bad bill and make it far better? Would it be worth having a mandate to buy insurance if it weren't such a crappy product?

I suspect that there are at least a few people on both sides of the aisle who have enough goodwill to want to improve the health insurance situation. That is different from improving the ACA. Many people, myself included believe that the ACA approaches the problem of insurance in a manner that is bound to cause more problems than it is worth.

That is why "working together" in this are is probably impossible. Rather than that, I think each side is trying to convince some portion of the electorate that their view is correct, so they can win elections and implement their vision.

So I don't view the failure to work together as a sign that they are uninterested in solving the problem, but that they have very fundamental differences in how the problem can be solved.

You are probably correct that Romney is not what people are hoping. I think many on the right distrust him, but think they have no better choice. I'm in that group. Whether he has what it takes to repeal will be a function of his fortitude which is unproven at best as well as the scope of his victory, assuming he wins (an iffy proposition to say the least).

Who determines whether a repeal bill has to treat the ACA mandate as a tax or a regulation?

In the Senate, the parliamentarian who was appointed by Reid. If there is an objection to his ruling, then the ruling can be appealed to the entire Senate. Beyond that, there is no appeal.

Thus, if Reid's parliamentarian says "no, it is not a tax," then IT IS NOT A TAX. The Senate controls its own "rules" and it has no obligation to follow the Court here.

The only real iron-clad rule here is that Reid and Obama are going to do whatever the hell they want, regardless of what some pieces of paper say, and if you don't like it, then you can eat shit and bark at the moon.

I didn't ask for your opinion of Senator Sessions. My point is that I think Sessions knows more than Marshal. I was just saying while I have the right to disagree with Marshal you and anyone else has the right to disagree with me.

My theory is that he had two opinions ready to go, knew what way he'd go, and did a fake out for reasons of his own - to fake out the other justices so they wouldn't be influenced by majority, to fake out the media, who can say?

Maybe your idea is right. I would always write an outline for a paper, then in the process of researching the paper, have to rewrite the thesis. It became my process. I didn't understand how anyone could just pull a thesis out of their pocket on the fly, but that is what is typically required and it is the most efficient.

"The Republicans have to sweep the elections. Roberts's ruling doesn't do them any tactical good at all for this session."

Yes, those of us who want to see Obamacare repealed have to rely on the Republicans regaining control of the Senate and many people think that by Roberts ruling it a tax it will help the Republicans regain control because most people don't like to vote for people who raise their taxes.

Didn't wade through all the comments. No time today. But reading Ann's posts and thinking things over during the last two days it occurs to me that we've been here before about 75 years ago.

Social security was (and continues to be) sold politically as an insurance/pension plan, but could not pass constitutional muster as such. It was and is a tax, and on that basis is constitutional. Nonetheless, people still believe in it as some sort of federal pension in which they have earned their benefits.

"dreams said... "Then he should be smart enough to explain to you how a bill has a budget effect (and therefore qualifies for reconciliation) but its repeal doesn't. Why don't you ask him how that works."

Sessions is saying because Roberts ruled it a tax it can now be repeal with only 51 votes via reconciliation."__________________________________If Robert's ruling that the mandate is a tax is what triggers the possible use of reconciliation, how was it passed under reconciliation two years before that ruling?

The ruling doesn't change whether it can be passed or repealed under reconciliation. You can use reconciliation for anything which has a budget effect whether it's a tax or not. Technically it has to reduce the budget, but it's trivial to add a few riders to switch a net increase to a net reduction if that's necessary.

It's all so political now. I salute Roberts for looking at the Constitutionality of the law [as he sees it] and not the politics of it. Of course, I probably would not salute a liberal judge if they came down on the conservative side on this one. Tough to break from politics.

So now people are going to look more clearly and see the truth of this legislation? Just who is going to tell them? Is Althouse going to get Ann Curry's spot on Today? Sorry, too old, no matter how smart. Are the newsies suddenly going to actually start to work and think? Is Congress going to decide to be responsible?

Of course not.

But this does not make Roberts wrong. It's not just the Court that's being asked to set things right. Look at the Federal Reserve. You may dislike their policies but they have these policies because our elected representatives, the President and the Congress as an institution, have failed to act. No budget for over three years? Completely ignoring the so called Deficit Commission? Personal perks and earmarks up the wazoo?

And where is Romney? What is his overarching theme? So far it's Romney Good-Obama Bad. Is he going to educate the country on how sick our institutions are? Is he going to insist that people in his own party as well as the Democrats act like grown ups with an important trust to fulfill? So far it does not look like it.

It's an uphill fight, Mitt. The news media are stupid, asleep and biased. The people know that something is wrong but no one is articulating what it is. No one will treat the voters like grown ups. No one will tell them that they can't have all those ponies.

You might win, Mitt. Or you might lose. But along the way fight the damn fight.

"They ought to simply repeal the "tax" and call it a middle class tax cut, and dare Obama to veto that."________________________________

Why wouldn't Obama just sign the bill? Sure it would put the insurance companies out of business eventually, but why would he care? He could use the resulting crisis to push for single payer healthcare while blaming the Republican Congress for the disruption.

He doesn't really want the mandate anyway. Sure the left will take whatever they can get. But if given a choice they prefer all additional spending to be funded with income taxes as that is the most progressive source of funds.

I haven't chosen to give up, but I am realistic. Just becuase one small portion of the law is a tax, that does not mean that the remainder of the law is related to taxes that can be overturned by 51 votes in the Senate. Roberts himself explained that the "mandate"/"tax" was separate from the guaranteed immediate coverage provision. It is the latter (along with the various other provisions) that will destroy the insurance market.

The attack was on the mandate becuase if that was declared unconstitutional, the hope was that the entire law would be struck down because there was intentionally no severability clause.

The blog posts on the legalities of the Roberts opinion are so depressing that I am going to spend some time on medical blogs where there is more information on what is really in the bill, besides the mandate which was never the really destructive part. One good site is this on-line book which starts here. The folks arguing about the mandate don't seem to understand that, if it is not stopped now, the damage it does to the health care system that exists will be irreversible.

A law compelling/dictating people buy something will do that every time.. if the congress were to say everybody must buy a car or else.. it will translate the same way.There is nothing "interesting" about it.

Looks like Wellpoint is the big loser compared to United HealthCare and Humana, though those two are down as well.

The market generally benefits from stability, while uncertainty generally hurts. In the short-term, this preserves the status quo, so it promotes short-term stability. Hard to know if it had any affect on the market as a whole though.

The tax is there to convince people to buy insurance through the mandate. If the tax is not sufficent to do so, people might just pay the tax instead and apply for a policy when they know they will push the costs onto the rest of the insured pool. The insurers will raise premiums on everyone else -- nothing in the law prevents that -- so the freeloader problem that Obama used to justify the mandate/tax will still exist until the tax equals the cost of premuims.

Zero and the lefties can destroy your well reasoned argument with a second graders logic. Their talking point is going to be..."We didn't pass a tax increase, we passed a penalty. The Chief Justice, appointed by a Republican, made it a tax."(I edited out all the umms, and errs for brevities sake)

Until you guys can come up with a better sound bite, and you can't because it's the truth, then I know which side the innattentive undecideds are going to rush towards.

And when you guys come out shouting "liar, liar, pants on fire", do you think Zero's base, or the press is gonna care? Or is Dave Stewart gonna have plenty of material to show of Republicans acting like cry babies.(because ALL politicians lie, they will show themselves to be hypocrits)

Today's biggest percentage gainer on the NYSE was Canandaigua Brands, Inc., which is engaged in the production, marketing and distribution of beverage alcohol products in North America and the United Kingdom.

People are gonna drink themselves into a stupor to forget about Obamacare!

Paul A'Barge says: Orin Kerr ... sigh. I guess there is a place in the Universe for Orin. I just don't think it's in polite company.

I suspect Orin Kerr has more familiarity with and acceptance in polite society than you ever will have, Paul. I also suspect you know that, which makes being Paul A'Barge an even more miserable fate than it already was.

Back on topic, this is some good commentary on the case. One way of looking at this is that if the duty of the judiciary is to say what the law is, then that duty extends to cutting through the political rhetoric to say what a law really entails. So if a law entails a tax, regardless of whether those who passed it want to admit that it is or not, it's the job of the Court to say, this law entails a tax. And if the power to pass that tax is constitutional, the rest of the decision follows.

And where is Romney? What is his overarching theme? So far it's Romney Good-Obama Bad. Is he going to educate the country on how sick our institutions are? Is he going to insist that people in his own party as well as the Democrats act like grown ups with an important trust to fulfill? So far it does not look like it.

It's an uphill fight, Mitt. The news media are stupid, asleep and biased. The people know that something is wrong but no one is articulating what it is. No one will treat the voters like grown ups. No one will tell them that they can't have all those ponies.

You might win, Mitt. Or you might lose. But along the way fight the damn fight.

There is no fucking way Mitt is going to tell Americans that they can't have their ponies.

"You can have all the ponies you want, just vote for me!!!" It's practically the official Romney campaign slogan.

There ain't no leadership there, David. None. And there ain't gonna be any.

Just like there wasn't any leadership with McCain four years ago. A compelling personal narrative from Vietnam does not a leader make...

Meanwhile, Obama put on the ultimate dog-and-pony show four years ago, promising and promising and promising. It was one of the best pony shows America had ever seen. Disingenuous, sure... but effective!

Americans want to believe! They want to hear promises about ponies and sweet seductive talk about their exceptionalism. Meanwhile the ponies don't arrive and the country atrophies, but, hey, that's reality, and Americans ain't into that reality thing. The citizen and voter lives in a mental la-la-land, and that reality causes the news media to live in la-la-land too.

My pal Lou Barnes had an excellent little bit about leadership in his newsletter today:

Speaking of leading… the economic stories this week and year are dwarfed by events in leadership often responsible for the economic results. The principal reason that housing is unable to lead the economy: there is no public policy. Congress is entertained by gridlock on the subject, the Right hating any federal assistance whatever, and the Left amused by hating all bankers. Mr. Bernanke, the leadership hero of this time, in January orchestrated the finest housing-policy recommendations of the decade and got no response from any other office of government.

Competing theories of leadership: great people appear and then move events; alternately, deeply troubled times call great people forward. Look around the world, and it’s hard to figure by either theory how the supply could be so thin.

Then from nowhere, a man granted high station and for seven years in office amounting to nothing, from that nowhere somehow found greatness. Thank you, John Roberts. Not for saving ObamaCare, but for showing the way beyond partisanship.

"Lastly, the Tea Party made it clear, “The Supreme Court ruled against the American people today… We are putting all politicians on notice that we will not rest until this law is overturned in its entirety.” And anyone who doubts the Tea Party’s tenacity in doing what they say they’ll do need only look at what they did to Sen. Richard Lugar (R-IN) or the Wisconsin unions earlier this year. (Or you could always look at the significant number of former office holders who got their pink slips in November 2010.)

The bottom line: Conservatives are looking to November to set things straight."www.breitbart.com

One more thing. There's commentary here and elsewhere by those who say that Justice Roberts made his decision because he didn't want to lose invitations to and acceptance at DC cocktail parties. Leaving aside the fact that most of the people saying that sort of thing probably have little experience in getting invited to cocktail parties in any city, does anyone believe that the Chief Justice of the US Supreme Court has trouble finding people who want him to come to their events? I mean seriously, does anyone really think that Justice Roberts is going to become a social pariah because of how he rules on a given case?

If so, such people are morons. I can guarantee you that one thing John Roberts doesn't have to ever worry about is whether or not other people (particularly, other influential people) will want to invite him to their parties, receptions or galas. I have no doubt his dance card is as filled as he wants it to be for the rest of his life and no case ruling will affect that.

The vote seems psychological, and the key phrase is the one on p. 6 where he says Don't make me responsible for your retarded political choices. I'll bet he did this in high school and even in elementary school -- sticking people with the consequences of their poor thinking. It just seems to be so inyourface with hatred the way the whole thing is poisonously phrased throughout. They guy seems psychologically unstable and incredibly angry about how dumb we are as a society to have elected Obama in the first place.

I've been a close follow of the Volokh blog for 6 years. Of all their posters, I have the least respect for Orin Kerr.

He is a Frumista(TM), a member of the group of Davids Frum/Gergen/Brooks, country club RINOs that includes others like Kathleen Parker and the now departed Lugar.

He is quite comfortable with the old Republican role as tax collector for the welfare state, as long as the Rs get to run the monster every eight years or so. He is the only blogger there who regularly comments on other posters topics, usually to contradict them, and I've seen him personally insult conservative commenters for no discernable reason and make kissy face with leftist commenters. He is part of the problem, not part of the solution.

Randy Barnett, a constitutional expert who made the activity/inactivity distinction acceptable when others like Kerr disparaged it, also is a blogger at Volokh.

Several years ago, Barnett stopped allowing comments on his posts because of the abusive incivility of the leftist commenters (and it's gotten worse since). When he opened them several months ago on the leadup to the SCOTUS ObamaCare case, Kerr published posts attacking his posts regularly.

While Roberts' last minute switch was very disturbing, he and all the conservative justices agreed that the activity/inactivity distinction was crucial to making the mandate unconstitutional under the Commerce Clause.

The leftists have pretty much taken over the comment section there. There are a lot of intelligent commenters here, who could be very important restoring that site to its conservative/libertarian origins.

The process of writing the opinion tests many assumptions, and a good, decent, humble judge looks at what he's doing and admits: This won't write.

But we have evidence that it DID write... because it IS written as the minority opinion.

Furthermore, if you conclude that he honesetly and humbly and all that nonsense couldn't bring himself to make an unmakable case, then you insinuate that the conservatives who voted against are NOT humble, honest people because they DID use the same argument that Mr. Humble couldn't.

Thank you, Professor, for saying a lot of things that needed saying, and saying them well. I certainly agree that evidence of Justice Roberts having switched his vote is not ipso facto evidence of cravenness, and there is far too much of that sort of suggestion from opponents of the bill. I'm an appellate practicioner (as might be obvious by the length of this post), and I can attest that it is not at all uncommon to see a judge who appears to have it all wrong at oral argument get it all right by the time the opinion is published. We all know that the process of committing ideas to writing exposes flawed thinking like nothing else (except possibly a smart and well-meaning adversary). If Justice Roberts found that the process of setting thoughts into words gave him some insight into the taxing power that he had previously lacked, then it was not only an honorable thing but his sworn duty to change his vote accordingly.

But even if that's true, I think it leaves out something necessary to an understanding of his thinking. A new insight into the taxing power could only shed light on the issue of whether that power could theoretically encompass the mandate before the court. Suppose Justice Roberts concluded that it did. That's a necessary condition for his ultimate ruling, but it isn't in my view a sufficient one.

In the absence of clear statutory language indicating that the mandate was intended to be a tax (and I think we can all agree there was no such language), the court's duty was to resort to other evidence to determine actual legislative intent. There are many sorts of evidence that can be brought to bear on that question, and one perfectly legitimate one is the "duck" test. So I have no problem with Justice Roberts looking at the substance of the law to determine whether it could fairly be called a "tax," regardless of the actual terminology employed in the law.

But that doesn't dispose of the question whether the statutory terminology was purposely selected for an identifiable reason that is incompatible with characterization of the mandate as a "tax." If there is evidence of that sort of purposeful selection, it should be taken into account and given its due weight in undermining the conclusion reached under duck test.

Looking at it from another direction, in the absence of any evidece as to which of Congress's powers it intended to exercise (or refrain from exercising), I don't think it would have been unreasonable to suppose that Congress intended its will to be carried out if the mandate was within any of its powers. But that wasn't the case here. As I understand it, there was lots of evidence before Justice Roberts that Congress did not intend to exercise its taxing power in support of the mandate, and little or no evidence to the contrary.

So Justice Roberts did not have the choice he appears to have believed he had -- to neutrally stand aside and let the consequences of the voters' political choices be visited upon them (thereby delivering perhaps the most expensive civics lesson in history). His choices were to become complicit in a bait-and-switch which could not have succeeded without his active help, or to give effect to Congress's evident decision (ratified by Presidential interpretation, for anyone who cares about signing-statement-type evidence) not to exercise its taxing power.

"absence of clear statutory language" is pure spin. There is no absence. Instead, there's language to the contrary.

This makes mincemeat out of your argument, because while it's reasonable to expect a justice to look for intent when it's not stated, it is manifestly NOT a justice's duty to ignore what WAS stated in order to approve legislation.

Being chief of the SC does NOT mean you get to make a presidential signing statement.

@Manty, did you perhaps miss the "not" in the very last line of my post? I think we are in agreement. And to say that there is no clear evidence of A is not to deny that there may be evidence of not-A.